Books

The U.S. Supreme Court typically rules on cases that present complex legal questions. Given the challenging nature of its cases and the popular view that the Court is divided along ideological lines, it's commonly assumed that the Court routinely hands down equally-divided decisions. Yet the justices actually issue unanimous decisions in approximately one third of the cases they decide.

Drawing on data from the U.S. Supreme Court database, internal court documents, and the justices' private papers, The Puzzle of Unanimity provides the first comprehensive account of how the Court reaches consensus. Pamela Corley, Amy Steigerwalt, and Artemus Ward propose and empirically test a theory of consensus; they find consensus is a function of multiple, concurrently-operating forces that cannot be fully accounted for by ideological attitudes. In this thorough investigation, the authors conclude that consensus is a function of the level of legal certainty and its ability to constrain justices' ideological preferences.

When justices write or join a concurring opinion, they demonstrate their preferences over substantive legal rules. Concurrences provide a way for justices to express their views about the law, to engage in a dialogue of law with each other, the legal community, the public, and Congress. This important study is the first systematic examination of the content of Supreme Court concurrences. While previous work on Supreme Court decision making focuses solely on the outcome of cases, Pamela C. Corley tackles the content of Supreme Court concurring opinions to show the reasoning behind each justice’s decision. Using both qualitative and quantitative methods of analysis, Concurring Opinion Writing on the U.S. Supreme Court offers a rich and detailed portrait of judicial decision making by studying the process of opinion writing and the formation of legal doctrine through the unique lens of concurrences.

Articles

We address fundamental questions about the ability of interest groups to shape public policy by examining the influence of amicus curiae briefs on U.S. Supreme Court majority opinion content. We argue that the justices will incorporate language from amicus briefs into their opinions based on the extent to which the amicus briefs contribute to their ability to make effective law and policy. Using plagiarism detection software and other forms of computer assisted content analysis, we find that the justices adopt language from amicus briefs based primarily on the quality of the brief's argument, the level of repetition in the brief, the ideological position advocated in the brief, and the identity of the amicus. These results add fresh insight into how interest groups influence the development of federal law by the Supreme Court.

We contribute to the debate among academics, practitioners, and judges regarding the extent to which amicus curiae briefs provide novel information or repeat arguments already available to courts. Using plagiarism detection software to compare the language used in U.S Supreme Court amicus briefs to that of lower court opinions, litigant briefs, and other amicus briefs, we find that amicus briefs seldom contain language that is repetitious of other information sources.

How can legal decision makers increase the likelihood of a favorable response from other legal and social actors? To answer this, we propose a novel theory based on the certainty expressed in language that is applicable to many different legal contexts. The theory is grounded in psychology and legal advocacy and suggests that expressing certainty enhances the persuasiveness of a message. We apply this theory to the principal-agent framework to examine the treatment of Supreme Court precedent by the Federal Courts of Appeal. We find that as the level of certainty in the Supreme Court’s opinion increases, the lower courts are more likely to positively treat the Court’s decision. We then discuss the implications of our findings for using certainty in a broader context.

In this article, we directly test the presence of judicial independence by examining judicial recess appointees who have later been confirmed by the Senate to full-time Article III judicial positions. Specifically, we compare the votes of recess appointed courts of appeals judges during their temporary appointment tenure with a similar period following Senate confirmation. We find substantial differences in pre- and postconfirmation voting, suggesting that the structural protections of the Constitution provide judges a certain amount of independence.

“National Policy Preferences and Judicial Review of State Statutes at the United States Supreme Court” (with Stefanie A. Lindquist). Publius: The Journal of Federalism 43(2): 151-178 (Spring 2013).

This article explores the determinants of U.S. Supreme Court justices’ voting behavior in cases involving constitutional challenges to state statutes, with a particular focus on the degree to which majoritarian influences as reflected in state participation and congressional preferences affect the justices’ votes. We find that the scope of the Court’s decisions in terms of its impact on similar state laws and the expressed interest of states as amicus strongly affects the justices’ willingness to vote to invalidate a state statute. Moreover, at least in the Burger Court, the justices were constrained by congressional preferences over the ideological direction of the constitutional challenge. Justices on the Rehnquist Court, however, appear to have been more impervious to congressional preferences when evaluating the constitutionality of state legislation.

The Supreme Court’s decision to invalidate a legislative enactment involves both the choice to strike as well as the choice whether to invalidate the statute on its face or as applied. Both choices implicate the possibility of counteraction by the legislature. In this paper, we evaluate the justices’ choices to invalidate a state or federal enactment on its face or as applied and find that the justices are responsive to congressional preferences concerning the substance of the legal challenge at both stages of judicial review. Other factors systematically affect the justices’ decisions as well, including the legal basis for the challenge, the statutory scope of the constitutional challenge, the president (through the solicitor general), and interest groups’ amicus filings. These findings suggest that the Court’s exercise of judicial review is significantly influenced by Congress and by other contextual, legal, and political factors, both as to the choice to strike as well as to the method of constitutional enforcement.

Despite the importance of Supreme Court opinions for the American polity, scholars have dedicated little systematic research to investigating the factors that contribute to the content of the justices’ opinions. In this article, we examine the ability of lower federal courts to shape the content of Supreme Court opinions. We argue that lower court opinions will influence the content of the Court’s opinions to the extent that the justices perceive that integrating language from lower court opinions will aid them in making efficacious law and policy. Utilizing plagiarism detection software to compare lower federal court opinions with the majority opinions of the Supreme Court during the 2002–2004 terms, we uncover evidence that the Court systematically incorporates language from the lower federal courts into its majority opinions.

Plurality decisions on the Supreme Court represent extreme dissensus where no clear majority is formed for any one controlling rationale for the final disposition. Studying these decisions is important because they erode the Court‟s credibility and authority as a source of legal leadership, and because they provide broader lessons about judicial decision making. This article presents the first systematic analysis of plurality decisions. We test three possible explanations for plurality decisions—a lack of social consensus, “hard” cases, and strategic interactions during opinion- writing. We find splintering increases when the Court reviews politically salient and constitutional issues, and when there was dissensus on the lower court, while it decreases when the chief assigns the opinion and when the Court is ideological heterogeneous.

To what extent do lower court judges follow Supreme Court plurality opinions? By examining treatments of Supreme Court cases from the 1976-1986 terms by the Circuit Courts of Appeals from 1976 to 2005, this article addresses the con- sequences of the Supreme Court’s failure to reach a clear majority decision. I find evidence that lower courts are less likely to follow plurality opinions than majority opinions. These findings have implications regarding the authority of the Supreme Court, compliance, and institutional legitimacy.

Do parties' briefs influence the content of Supreme Court opinions? The author contends that the parties, through the briefs submitted on the merits, have the ability to influence the content of opinions and, consequently, have the ability to influence the law. Utilizing plagiarism software, the author compares the parties' briefs to the majority opinion of the Court. The results indicate that there is a connection between the language of the parties' briefs and the language of the opinions, which means that parties have the potential to influence the law.

“Bargaining and Accommodation on the United States Supreme Court: Insight from Justice Blackmun.” Judicature 90(4): 157-165 (January-February 2007).